State v. Franks, No. 31881-4-II (WA 11/1/2005)
| Decision Date | 01 November 2005 |
| Docket Number | No. 31881-4-II,31881-4-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. GREGORY FRANKS, Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 03-1-01706-1. Judgment or order under review. Date filed: 06/11/2004. Judge signing: Hon. Katherine M Stolz.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.
Counsel for Respondent(s), P. Grace Kingman, Attorney at Law, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
A jury convicted Gregory Franks of unlawful possession of a controlled substance (methamphetamine) discovered in a search incident to his arrest. Claiming automatic standing, he challenges the warrantless entry of another person's property. We affirm because even assuming that he has standing, his claim fails as the officers properly entered the property.
Barney Huebner lived next door to Donald Kirtland. When Kirtland moved into the home, Huebner noticed suspicious behavior. The Huebner and Kirtland garages are four feet apart, divided by a wooden fence.
People visited the Kirtland residence throughout the night and day. Much of this `constant foot traffic' occurred on a three- to four-foot wide well-worn pathway between the garage and fence line. Clerk's Papers (CP) at 73, 75. The pathway led to the side of the garage, but not to the main entrance of the house. Accessible from an alley, the pathway did not have a gate.2
Twice, Huebner smelled the very strong odor of ammonia coming from the vicinity of Kirtland's garage. The odor burned his eyes and nose and once caused him to leave. Huebner also noted that Kirtland had placed heavy metal bars on his windows.
Around sunset on April 12, 2003, as Huebner smoked meat in his garage, he saw several people arrive at Kirtland's house. Using a ladder, he peeked over the fence and saw perhaps six men standing in the yard in front of the garage. One of them held a clear/tan bag containing about two to three pounds of a granular substance. Huebner watched the men dump materials and dig up the grass. When the men saw Huebner, they scattered "like a covey of quail." CP at 74.
Huebner suspected the substance was methamphetamine, having seen it on a television program. He called 911 dispatch to report his observations. Around 10 p.m., Officers Mettler, Quilio, and Woodard responded to the dispatch, parking in the alley behind Kirtland's garage. Huebner related his observations to the officers.
Mettler served as a certified clandestine lab team instructor and member. Quilio also served as a team member. Both knew about the dangers associated with meth labs and their volatile chemicals that could spontaneously explode, start a fire, or cause breathing problems.
Mettler and Quilio proceeded down the unlit pathway. Halfway down, Mettler detected the recognizable odor of solvents used in manufacturing methamphetamine. Both officers saw Franks standing by the corner of the garage that faced the yard and not the alley. He wore a leather work glove.
As Quilio moved toward the man door entry to the garage, Mettler approached Franks and read him Miranda warnings.3 Acknowledging his rights but waiving them, Franks explained that the home belonged to Kirtland, who had been present earlier. Franks stated that he had been stripping lithium batteries in the garage. The officers detained Franks in the patrol car.
Mettler knew Kirtland from other contacts involving methamphetamine labs and weapons. He conducted a records check and discovered that Kirtland had three felony arrest warrants.
Meanwhile, smelling a strong chemical odor and hearing voices from the garage, Quilio called to those inside to exit and also opened the unlocked man door entry to the garage. Quilio discovered that the garage was unoccupied and that the voices came from a radio.
The officers then obtained a search warrant for the home and garage. They arrested Franks for unlawful methamphetamine manufacturing and transported him to the Pierce County Jail. During a search incident to Franks' arrest, officers found a baggie of methamphetamine.
The State charged Franks with unlawful manufacture of a controlled substance (methamphetamine) and unlawful possession of a controlled substance (methamphetamine).4 It charged Kirtland as a co-defendant.
Franks and Kirtland both filed motions to suppress, challenging the officers' warrantless entry and search. At the suppression hearing, Franks conceded that he lacked standing. Because Kirtland filed a separate motion to suppress, the trial court conducted a hearing.
The State argued that the officers properly entered the property without a warrant based on legitimate police business of investigating a citizen's tip and the emergency exception. The court allowed Franks' counsel to cross-examine the witnesses.
At the suppression hearing's conclusion, the trial court entered written findings and conclusions. Noting that the parties did not dispute the facts, it determined that Franks lacked standing to object to the search of another's property and that the officers rightfully entered the property through the well-worn pathway.
At trial, the jury convicted Franks of unlawful possession of a controlled substance (methamphetamine). It could not reach a verdict on the manufacturing charge.
Franks appeals.
Franks contends that he has automatic standing to challenge the warrantless search of Kirtland's property. He further contends that the trial court erred in denying his motion to suppress.
At the suppression hearing, Franks conceded that he lacked standing.5 Ordinarily this concession precludes appellate review of Franks' claims. See State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997) (). Nevertheless, even assuming that Franks had standing, his warrantless search arguments fail.
Franks assigns error to the trial court's conclusions of law 5-11. We review conclusions of law following a suppression hearing de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). The facts were undisputed at the suppression hearing and Franks does not assign error to the findings. Therefore, we consider them verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Thus, we look only at the court's challenged conclusions:
5. The officers had a right to enter the property from where the constant foot traffic and commotion occurred which is the well-worn pathway between Mr. Huebner's garage and Mr. Kirtland's garage. This is the only access to Mr. Kirtland's garage from the alley. The officers were on legitimate police business and were investigating a possible meth lab.
6. The officers had a right to stop Mr. Franks and inquire about the activity Mr. Huebner observed and inquire about the strong chemical odor emanating from the garage.
7. Based on exigent circumstances and officer safety reasons (information provided by Mr. Huebner, the strong chemical odor, additional voices coming from the garage, and Mr. Kirtland's prior history with law enforcement), Officer Quilio was lawful in opening the garage door. Officer Quilio did not enter the garage but simply glanced around to ensure that there were no additional suspects or additional safety hazards associated with manufacturing methamphetamine.
8. Law enforcement officers may search premises without obtaining a warrant specifically if the officers know that the premises contains a dangerous substance which may likely burn, explode, or otherwise cause harm.
9. The officers were justified in contacting the residence. The officers were attempting to make contact with possible other suspects at the residence, attempting to locate Mr. Kirtland in order to serve the three outstanding felony warrants, and check for additional safety hazards associated with a suspected meth lab.
10. The judge who issued the search warrant did not abuse his/her discretion in finding probable cause to search the garage and residence because there was a sufficient nexus between the crime and the areas to be searched for evidence of the crime.
11. The motion to suppress should be denied because the defendant has failed to show that the evidence found was the fruit of an unlawful search.
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution protect citizens from unreasonable searches and seizures. State v. Davis, 86 Wn. App. 414, 420, 937 P.2d 1110, review denied, 133 Wn.2d 1028 (1997). Warrantless searches of...
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